The Impact Of Judicial Review On American Federalism

The relative scope of federal and state power under the U.S. Constitution has been a major bone of contention for over 200 years. Courts have sometimes enforced substantial limits on federal authority by striking down federal laws deemed to be outside the scope of Congress' enumerated powers under Article I of the Constitution. Very often, the judiciary has also constrained state power by invalidating state laws as violations of constitutional rights. While judicial review has therefore promoted both centralization and state autonomy at different times, on balance it has strengthened the former at the expense of the latter. This pattern has been especially prevalent since the 1930s, as the Supreme Court largely abandoned earlier efforts to police limits on congressional power, while simultaneously enforcing a growing array of individual rights against state and local governments. This chapter examines the impact of judicial review on American federalism without attempting a normative judgment. It briefly outlines the structure of American federalism and judicial review, and then describes the history of judicial review of structural limits on federal power. In the nineteenth and early twentieth centuries, the Supreme Court engaged in limited, but significant efforts to constrain congressional power. These efforts were to a large extent abandoned after the constitutional revolution of the New Deal period in the 1930s. The Supreme Court has recently attempted to revive judicial enforcement of limits on federal power. But so far these efforts have had only a limited effect. The chapter then summarizes the history of judicial review of state laws. The range of issues on which federal courts have invalidated state laws is extremely broad. Overall, the impact of these rulings in curbing state autonomy significantly exceeds the effects of the courts' more limited efforts to constrain federal power. The last part of the chapter briefly explains why the latter result was not accidental. Because federal judges are appointed by the president and confirmed by the Senate, the chance that they will resist the political agenda of the dominant political coalition in the federal government is reduced. Even when federal judges do want to invalidate federal legislation, they may hesitate to do so when the result might create a political confrontation that the courts are likely to lose. Federal judges face fewer political risks when they strike down state legislation.

Classic Books Library presents this brand new edition of “The Federalist Papers”, a collection of separate essays and articles compiled in 1788 by Alexander Hamilton. Following the United States Declaration of Independence in 1776, the governing doctrines and policies of the States lacked cohesion. “The Federalist”, as it was previously known, was constructed by American statesman Alexander Hamilton, and was intended to catalyse the ratification of the United States Constitution. Hamilton recruited fellow statesmen James Madison Jr., and John Jay to write papers for the compendium, and the three are known as some of the Founding Fathers of the United States. Alexander Hamilton (c. 1755–1804) was an American lawyer, journalist and highly influential government official. He also served as a Senior Officer in the Army between 1799-1800 and founded the Federalist Party, the system that governed the nation’s finances. His contributions to the Constitution and leadership made a significant and lasting impact on the early development of the nation of the United States.

This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

As constitutional scholar John Nowak noted when the book was first released, "Professor Choper's Judicial Review and the National Political Process is mandatory reading for anyone seriously attempting to study our constitutional system of government. It is an important assessment of the democratic process and the theoretical and practical role of the Supreme Court." That view is no less true today, as borne out by the countless citations to this landmark work over the decades, including scores in the last few years alone. It is simply part of the foundational canon of constitutional law and political theory, an essential part of the library of scholars, students, and educated readers interested in considering the hard choices inherent in what the courts should decide and how they should decide them.

Black & white print. American Government 3e aligns with the topics and objectives of many government courses. Faculty involved in the project have endeavored to make government workings, issues, debates, and impacts meaningful and memorable to students while maintaining the conceptual coverage and rigor inherent in the subject. With this objective in mind, the content of this textbook has been developed and arranged to provide a logical progression from the fundamental principles of institutional design at the founding, to avenues of political participation, to thorough coverage of the political structures that constitute American government. The book builds upon what students have already learned and emphasizes connections between topics as well as between theory and applications. The goal of each section is to enable students not just to recognize concepts, but to work with them in ways that will be useful in later courses, future careers, and as engaged citizens. In order to help students understand the ways that government, society, and individuals interconnect, the revision includes more examples and details regarding the lived experiences of diverse groups and communities within the United States. The authors and reviewers sought to strike a balance between confronting the negative and harmful elements of American government, history, and current events, while demonstrating progress in overcoming them. In doing so, the approach seeks to provide instructors with ample opportunities to open discussions, extend and update concepts, and drive deeper engagement.